Unless otherwise agreed in writing with Nomad AI Ltd, these terms govern the relationship between you and Nomad AI.
1. DEFINITIONS AND CONSTRUCTION
1.1 In this Agreement the following expressions shall apply (save where the context otherwise requires):
“Add-On Pack” means a one-off allocation of Users and/or Managed E-mails which shall be valid for one Month and which may be purchased by the Customer in order to permit them to exceed the level of usage permitted by their Pricing Band in a given Month.
“Annual” means a calendar year and “annually” shall be construed accordingly.
“Commencement Date” means the date on which this Agreement is entered into between the two Parties.
“Customer” means the party which signifies acceptance of this Agreement.
“Customer Data” means all data processed by Kulea.ma or provided to Nomad AI for processing by Kulea.ma or otherwise processed as part of the Services including, but not limited to, data generated by, or originating from the Customer Website from visitor input.
“Customer Equipment” means the hardware and software which the Customer is required to have in use in order to use and enable the Services to be provided in accordance with this Agreement.
“Customer Website” means the website or websites onto which the Customer inserts the Kulea Tracking Script
“Downtime” means a period during Service Hours during which there is total loss of the Services.
“Tracking script” means the lines of computer code provided by Nomad AI to the Customer as set out in clause 5, which the Customer must implement on the Customer Website as set out in the Instructions in order to use the Services.
“Initial Period” means a period defined in the Plan, and is usually the period of one Month or one Year commencing on the Commencement Date, unless otherwise agreed.
“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
“Nomad AI” is the intellectual property holder of Kulea.ma, and is company registered in England and Wales with company number 09350222.
“Managed E-mails” means an e-mail which is sent by the Customer to one or more Users by way of the Kulea Software.
“Minimum Specification” means the minimum technical specifications required in order to receive the Services, as set out on the Website.
“Month” means a calendar month and “monthly” shall be construed accordingly.
“Outage” means an instance of Downtime.
“Plan” means the plan selected upon sign-up or upgraded as paragraph 4.5
“Pricing Band” means the pricing tier selected by the Customer in respect of its use of the Service. The Customer’s selected Pricing Band shall govern how many Individuals the Customer may track using the Services and how many Managed E-mails it may send each month. A description of the Pricing Bands available will be set out on the Website, with a clear statement of how many monthly Users and Managed E-mails are permitted under each one.
“Renewal Period” means a period defined in the Plan, and is usually Monthly or Annually, unless otherwise agreed.
“Service Fee” means the fee payable to Nomad AI in return for provision of the Services, which shall be the rate proscribed by the Customer’s then current Pricing Band.
“Service Hours” means the hours during which the Services are to be provided, which shall be 24 hours a day, 365 days a year.
“Service Interruption” means a period during Service Hours during which there is partial loss of the Services.
“Services” means the provision and ongoing remote operation of the Kulea.ma software.
“Software” means Nomad AI’s proprietary software ‘Kulea.ma’ which is used to provide the Services.
“Term” means the effective term of this Agreement.
“Unethical” means anything which by its nature is criminal, pornographic, hate speech, harassment, terrorism, defamatory, libelous or which promotes, incites or encourages activity which would fall into one of those categories.
“User” means an individual user who visits the Customer’s website and whose visit is identified and recorded by the Software, or an individual whose details are identified to and recorded by the Software using a list or database supplied by the Customer.
“Website” means the kulea.ma website, managed and owned by Nomad AI, located at https://kulea.ma
“Year” means a calendar year.
2. PROVISION OF SERVICES AND LICENCES
2.1. Nomad AI agrees with effect from the Commencement Date in consideration of the payment of the Service Fee by the Customer to supply the Services on a non-exclusive basis upon the terms and conditions of this Agreement.
3.1. This Agreement shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue for the Initial Period and thereafter until terminated by either party in accordance with the terms of this Agreement.
3.2. At the conclusion of the Initial Period and of any subsequent Renewal Period this Agreement shall be automatically renewed for a Renewal Period.
4. SERVICE FEE
4.1. The Customer undertakes to pay the Service Fee for the Services and additional fees to Nomad AI for any other services provided by Nomad AI, such charges to be based on Nomad AI’s then current charging rates.
4.2. The Customer shall pay the Service fee and different rates apply to different plans. The Service Fee is charged in advance on monthly, or annual payment intervals. All Service Fees are non-refundable, ie: there are no refunds or credits for periods where the Customer does not use the Services, used the Services partially or cancels or terminates the Services. Such payment will be collected by direct debit or other similar method.
4.3. The Service Fee shall be equal to the Customer’s then current Pricing Band or, in the case of Agency and Enterprise Solutions, the Service Fee stipulated within the Order Acknowledgment. Where the Customer’s use of the Services exceeds the permitted monthly number of Users and/or E-mails in a given month then the Customer shall:
4.3.1. Purchase an Add-On Pack to cover their increased use of the Service in that particular month; or
4.3.2. Be automatically transferred to the next Pricing Band adequate to cover its increased use of the Service, whereby it will be charged the difference between that Pricing Band and the price of its current Pricing Band, with the Service Fee for subsequent payment intervals of being charged at the increased Pricing Band’s rate.
4.4. Nomad AI shall be entitled to suspend or prevent access to the Services without notice or penalty in the event that any instalment of the Service Fee is not received.
4.5. Where the Customer’s use of the Service is deemed by Nomad AI to represent an unreasonable or disproportionate usage relative to the Customer’s current Pricing Band, Nomad AI reserves the right to move the Customer to a higher Pricing Band by giving written notice, such increase to take effect at the point at which the Customer is next charged the Service Fee.
4.6. Nomad AI shall be entitled to increase the Service Fee with effect from the Commencement of the next Renewal Period by giving written notice to the Customer in advance of collecting payment in respect of that Renewal Period.
4.7. All sums due under this Agreement are expressed exclusive of VAT. All VAT and/or similar sales taxes will be payable by the Customer.
5. CUSTOMER OBLIGATIONS
5.1. The customer recognises that in order to receive the Services it must update its website with the Kulea Tracking Script in accordance with the instructions set out in the ‘Help’ section of the Website.
5.2. In order to function the Service will drop certain cookies, as set out on the Website, onto Users’ computers. In order to ensure that the Services function correctly and that all relevant law is complied with, the Customer is required to and undertakes that it shall:
5.2.2. ensure that its websites have valid cookies policies which comply with all relevant law;
5.2.3. update its cookies policies with details of the cookies dropped by the Services (using the details provided on the Website) to ensure that they contain a comprehensive description of those cookies’ name, function, purpose and duration; and
5.2.4. ensure that its website, and use of data relating to or gathered from its website, is compliant with all relevant laws that deal with cookies and/or data protection;
5.3. The Customer undertakes to indemnify and hold harmless Nomad AI from any loss or damage which it may suffer as a result of Customer’s breach of this clause 5.2.
6. SERVICE LEVELS
6.1. Nomad AI undertakes with the Customer that it will use its reasonable endeavors to ensure that the Services and each component thereof will, subject to Clauses 7, 8.3, 11.4 and 14, be provided without significant Service Interruptions or incidences of Downtime.
7. OUTAGES, SERVICE INTERRUPTIONS AND CHANGES TO SERVICES
7.1. Outages or Service Interruptions may be made by Nomad AI when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. Nomad AI will use reasonable endeavors to minimise the Outages or Service Interruptions that may be caused by a change.
7.2. If Outages or Service Interruptions are required under clause 7.1 (“Scheduled Interruptions”):
7.2.1. Nomad AI will endeavour to schedule Scheduled Interruptions so as to minimise impact on the Services and where appropriate will notify the Customer of the anticipated commencement time of the Scheduled Interruptions and its estimated duration.
8. WARRANTIES AND INDEMNITIES
8.1. Nomad AI warrants to and undertakes with the Customer that:
8.1.1. Nomad AI will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
8.1.2. Nomad AI has the power and authority to provide the Services to the Customer in accordance with the terms of this Agreement; and
8.2. Except for the express warranties set forth in this clause 8, the Services are provided on an “as is” basis, and the Customer’s use of the services is at its own risk. Nomad AI does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. Nomad AI does not warrant that the Services will be uninterrupted, error-free, or completely secure.
8.3. Nomad AI does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Nomad AI will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Nomad AI cannot guarantee that such events will not occur. Accordingly, Nomad AI disclaims any and all liability resulting from or related to such events.
9. CUSTOMER OBLIGATIONS AND WARRANTIES
9.1. The Customer is required at all times during the term to maintain its equipment in good order and working condition. The Customer recognises that the Services may not function properly, or at all, if its equipment falls below the Minimum Specification.
9.3. In the event that the Customer is in breach of any of its obligations under this Agreement, then:-
9.3.1. Nomad AI shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems; and
9.3.2. Nomad AI may terminate or suspend Provision of the Services without prejudice to any pre-existing rights and obligations of either party.
9.4. The Customer represents, warrants and undertakes that:
9.4.1. it has and shall during the Term have the legal right and authority to place and use and have used any of its equipment as contemplated under this Agreement;
9.4.2. it will use the Services only for lawful purposes and in accordance with the terms of this Agreement and any applicable laws and regulations; and
9.4.3. any software, data, equipment or other materials provided by the Customer to Nomad AI or employed by the Customer in its use of or receipt of the Services shall not infringe any Intellectual Property Rights of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.
9.5. The Customer shall provide all such assistance, facilities and information to Nomad AI as Nomad AI may reasonably require in order to enable it to carry out its obligations under this Agreement.
9.6. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Nomad AI will have the right to suspend immediately and without liability any or all access to the Services if deemed reasonably necessary by Nomad AI to protect the proper interests of Nomad AI or its other customers. If practicable and depending on the nature of the breach, Nomad AI may (in its absolute discretion) give the Customer an opportunity to cure. In such case once the Customer has cured the breach, Nomad AI will restore access to the Service(s).
10.1. Each party recognises that it is impossible to maintain flawless security but (where relevant) Nomad AI shall take all reasonable steps to prevent security breaches in its servers’ interaction with the Customer and security breaches in our interaction with resources or users outside of any firewall that may be built into Nomad AI’s servers.
10.2. The Customer is responsible for maintaining the confidentiality of any passwords which are required to access the Services and for securely storing any data which it may generate as a result of using the Services and is solely responsible for any damage caused by any such unauthorised access.
11. LIMITATION OF LIABILITY
YOUR ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE- PLEASE READ IT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT.
11.1. Nomad AI shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond Nomad AI’s reasonable control.
11.2. Nomad AI shall not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Customer or for any wasted management time, failure to reconstitute data, failure to make anticipated savings or liability of the Customer to any third party arising in any way in connection with this Agreement or any other agreement entered into between the Customer and Nomad AI or for any liability of the Customer to any third party or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
11.3. The Customer accepts that Nomad AI is in no way liable for any virus or other contaminants which enter the Customer’s email system or computer network via email (whether through attachments to e-mails or otherwise).
11.4. Nomad AI shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:-
11.4.1. interruptions to the flow of data to or from the internet;
11.4.2. changes, updates or repairs to the network or software which it uses as a platform to provide the Services subject to Nomad AI striving to minimise the interruptions/outages that may be caused by such change;
11.4.3. the effects of the failure or interruption of services provided by third parties;
11.4.4. factors outside of Nomad AI’s reasonable control;
11.4.5. any actions or omissions of the Customer (including, without limitation, breach of the Customer’s obligations set out in this Agreement or the Proposal) or any third parties;
11.4.6. problems with the Customer’s equipment and/or third party equipment;
11.4.7. interruptions to the Services requested by the Customer.
11.5. None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Nomad AI or its appointed agents.
11.6. No matter how many claims are made and whatever the basis of such claims, Nomad AI’s maximum aggregate liability to the Customer under or in connection with this Agreement or any other agreement between the parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clauses 11.1-11.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed £1,000,000.
11.7. The Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fee has been calculated on the basis of the limitations and exclusions in this clause 11 and that the Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this clause 11.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. Without prejudice to the Customer’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by Nomad AI in connection with or related to the provision of the Services hereunder.
12.2. Nomad AI warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Services in accordance with this Agreement.
12.3. The Customer hereby grants to Nomad AI:
12.3.1. A non-exclusive, royalty-free, world-wide licence during the Term of use, to copy, reproduce, and manipulate data provided by the Customer or resulting from the Services (including, for the avoidance of doubt, data relating to Nomad AI’s use of the Services) for the purposes of using the data for the provision of the Services; and
12.3.2. A non-exclusive, royalty-free, world-wide licence during the Term of use, to reproduce and display the Customer’s trade marks for the purposes of using the data for the provision of the Services.
12.4. Subject to any contrary provision in this Agreement, Nomad AI undertakes only to use the Customer’s trade marks for the purpose of providing the Services.
13.1. For the purposes of this clause 13, the following events shall be deemed “Acts of Default”:
13.1.1. if the Customer fails to pay any moneys due pursuant hereto within 7 days of the due date therefore;
13.1.2. if a party commits any material breach of any term of this Agreement (other than one falling under clause 13.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
13.1.3. if a party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction.
13.2. If the Customer commits an Act of Default then Nomad AI may:
13.2.1. forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement or give rise to any service credits; or
13.2.2. terminate this Agreement by notice in writing forthwith.
13.3. Either party may terminate this Agreement at the conclusion of any Renewal Period: either by giving notice that it does not wish to pay for any further Renewal Periods in the case of Customer, or by declining to accept further Payments in the case of the Nomad AI.
13.4. Nomad AI may terminate this Agreement and provision of the Services immediately and without liability in the event that is considers that Customer’s use of the Service, or other relevant actions or omissions, may bring Nomad AI’s reputation into disrepute.
13.5. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13.6. In the event of termination of this Agreement:-
13.6.1. the Customer agrees promptly to pay to Nomad AI all outstanding payments;
13.6.2. Nomad AI’s entitlement to use the Customer’s trade marks ceases immediately except as necessary for the provision of any post-termination services;
13.7. Termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to such termination.
14. FORCE MAJEURE
14.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its subcontractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
14.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any preexisting rights or obligations of either party.
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post, e-mail or by facsimile transmission to the address, e-mail address or to the facsimile number of the other party regularly used by it for business correspondence and any such notice or other document shall be deemed to have been served (if e-mailed) at the time of transmission and (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile transmission or email) upon the expiration of 12 hours after dispatch.
No announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities by either of the parties without the prior written consent of the other party.
18. INVALIDITY AND SEVERABILITY
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
19. ENTIRE AGREEMENT
19.1. Subject to clause 19.2, this written Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause 19.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert appointed under clause 23 may allow reliance on the same as being fair and reasonable.
19.2. Nomad AI shall be entitled to change or update the terms of this Agreement at any time by posting an amended version of the terms on the Website. Such changes shall take effect at the commencement of the Renewal Period which falls immediately after such change is published on the Website.
This Agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.
The Customer shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder.
Nomad AI shall be entitled to subcontract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
23.1. All disputes or differences which shall at any time hereafter arise between Nomad AI and the Customer in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Nomad AI and the Customer shall jointly nominate.
23.2. If Nomad AI and the Customer shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be an arbiter appointed by the London Court of International Arbitration.
23.3. The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Nomad AI and the Customer.
This Agreement shall be governed by and construed in accordance with English law and (subject always to clause 23) the parties submit to the exclusive jurisdiction of the courts of England and Wales.